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[2019] ZALCJHB 63
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National Education Health and Allied Workers Union (NEHAWU) and Others v Metrofile (Pty) Ltd and Others (JS382/18) [2019] ZALCJHB 63 (8 March 2019)
the
labour court of South Africa, JOHANNESBURG
Reportable
Case No: JS 382/18
In
the matter between:
national
education health and
allied
workers union (nehawu)
OBO
SECOND TO SEVENTEENTH APPLICANTS
First
Applicant
BONGANI
DLADLA
Second
Applicant
CATHARINE
MOLEFE Third
Applicant
HLENGIWE
BUTHELEZI
Fourth Applicant
SONGEZE
JIYA Fifth
Applicant
GLADYS
MAMATSHELE Sixth
Applicant
MATHLODI
MASIPA
Seventh Applicant
LESIBA
JIMMY
MOGALE Eighth
Applicant
BONGA
GEORGE
DLADLA Ninth
Applicant
JOSEPH
DIPUO Tenth
Applicant
CADWELL
MAKHALE
Eleventh Applicant
LUCKY
MPOFU
Twelfth
Applicant
LESETJA
THOMAS
LEDIGA Thirteenth
Applicant
DUDU
VERONICA
MBULI
Fourteenth Applicant
DORAH
MALEBYE
Fifteenth
Applicant
AUDREY
KITIERENG
NOGE Sixteenth
Applicant
KEDIEMETSE
ANNA ABRAHAMS
Seventeenth Applicant
and
METROFILE
(PTY)
LTD
First Respondent
INFOVAULT
(PTY)
LTD
(Registration
No: 2002/021025/07)
Second Respondent
DISCOVERY
(PTY)
LTD
(Registration
No: 1997/013480/07)
Third
Respondent
ZAHEER
CASSIM N.O.
(Nomine
Officio)
Fourth Respondent
Heard
:
15 February 2019
Delivered
:
08 March 2019
JUDGMENT
NIEUWOUDT.
AJ
Introduction
[1]
This is an application for condonation of the late delivery of the
statement
of case by the applicant. There are 4 respondents in the
matter but only the first respondent opposes the application for
condonation.
For the sake of convenience, the Court refers to that
respondent as the respondent hereinafter.
[2]
There is an issue about which of the individual applicants were
included
in the referral to the Commission for Conciliation Mediation
and Arbitration (CCMA) but this Court will not deal with this aspect
at this stage of condonation.
Background
[3]
Only the facts that are material to this application will be
highlighted
herein. The individual applicants were retrenched. They
viewed the retrenchment to be unfair and on or about 5 July 2017, the
first
applicant referred a dispute relating to the unfair
retrenchment of the individual applicants, to the CCMA.
[4]
The dispute was conciliated on or about 1 August 2017 and a
certificate
of outcome was issued on that date. The certificate
indicated that the dispute had to be referred to this Court. Despite
this,
the first applicant referred the matter to arbitration on or
about 20 September 2017. On 20 November 2017 the CCMA ruled that it
did not have jurisdiction to arbitrate the dispute.
[5]
The offices of the first applicant closed on a date that is not
disclosed
for the Christmas period and re-opened on 10 January 2018.
The first applicant instructed its attorneys of record in this matter
on or about 23 January 2018. On or about 29 January 2018 the attorney
briefed counsel. On 28 February 2018 and again early in March
2018
the first applicant consulted with counsel.
[6]
On 11 April 2018 the applicants delivered an application in terms of
Rule
7. The respondent objected to this as an irregular step on a
date which is not common cause but which can be accepted to have been
9 May 2018. The respondent afforded the applicants fourteen days to
deliver a response to the notice of irregular step. The statement
of
claim was filed on 29 May 2018.
The
test for condonation
[7]
The test to
be applied when considering such an application is trite.
[1]
In
Grootboom
v National Prosecuting Authority and Another
[2]
,
the Constitutional Court, in a majority decision, held that:
“
[22]
… the standard for considering an application for condonation
is the interests of justice. However,
the concept 'interests of
justice' is so elastic that it is not capable of precise definition.
As the two cases demonstrate, it
includes: the nature of the relief
sought; the extent and cause of the delay; the effect of
the delay on the administration
of justice and other litigants;
the reasonableness of the explanation for the delay; the
importance of the issue to be
raised in the intended appeal; and
the prospects of success. It is crucial to reiterate that both
Brummer and Van Wyk emphasize
that the ultimate determination of what
is in the interests of justice must reflect due regard to all the
relevant factors but
it is not necessarily limited to those mentioned
above. The particular circumstances of each case will determine which
of these
factors are relevant.”
[8]
In
Melane supra
the Court stated that the factors were
interrelated and not individually decisive. What was needed was an
objective conspectus of
all the facts; therefore, slight delay and a
good explanation may help to compensate for prospects of success
which are not strong.
The importance of the issue and strong
prospects of success could also compensate for a long delay.
[9]
A further
principle is important. In
Collett
v Commission for Conciliation, Mediation and Arbitration and
Others
[3]
the
Labour Appeal Court (LAC) stated as follows:
“
[38]
There are overwhelming precedents in this Court, the Supreme Court of
Appeal and the Constitutional
Court for the proposition that where
there is a flagrant or gross failure to comply with the rules of
court, condonation may be
refused without considering the prospects
of success. In
NUM v Council for Mineral Technology
(1999) 3
BLLR 209
(LAC) at para 10, it was pointed out that in considering
whether good cause has been shown the well-known approach adopted in
Melane v Santam Insurance Co Ltd
1962 (4) SA 531
(A) at 532
C-D ... should be followed but:
‘
There
is a further principle which is applied and that is without a
reasonable and acceptable explanation for the delay, the prospects
of
success are immaterial, and without good prospects of success, no
matter how good the explanation for the delay, an application
for
condonation should be refused.’
[39]
The submission that the court a quo had to consider the prospects of
success irrespective of
the unsatisfactory and unacceptable
explanation for the gross and flagrant disregard of the rules is
without merit.”
[10]
Although a strict application of the test in
Collet supra
in
this matter could entail not having regard to the period of the delay
and the explanation thereof, at all, the Court will nevertheless
have
regard to them.
The
period of the delay
[11]
The applicants, in the papers, contended for a shorter period of
delay but Mr Moretlwe
quite properly conceded that the period of
delay was 211 days. Bearing in mind that the referral had to be made
within 90 days,
the delay is long.
The
explanation for the delay
[12]
The applicants do explain the delay. They do so with a varying degree
of detail for different
periods.
[13]
The period from 1 August 2017 to 20 November 2017 is explained by the
referral to arbitration.
Bearing in mind that the 90-day period would
only have expired in the beginning of November, this period is not
particularly crucial.
Had the applicants referred the dispute to this
Court within a reasonable period after the CCMA informed them that it
did not have
jurisdiction, the explanation for the delay would
probably have been acceptable. This is so despite the fact that it is
not readily
understandable why a union official would think that a
dispute relating to the retrenchment of a number of employees by an
employer
that employed more than 10 employees, could be referred to
arbitration.
[14]
The Court
is also of the view that the inactivity over the Christmas period
should not be subjected to too intense scrutiny. People
go on holiday
for different periods and not much activity takes place. The
following dictum by Sutherland AJ (as he then was) from
Transport
& General Workers Union & others v Hiemstra NO &
another
[4]
apposite:
“
In my view I would
be unduly shortsighted to fail to acknowledge that it is a norm of
South African society that during the period
mid-December to early
January the nation slouches to a near halt. This customary annual
shutdown may not have excused the appropriate
degree of expedition in
a matter which was truly urgent but it can hardly be said that the
nature of this matter was one in which
it was inexcusable not to
disturb our collective slumber.”
[15]
The first applicant’s offices opened on 10 January 2018. At
this point it must have
been clear that the delivery of the statement
of claim was out of time and that it required urgent attention.
Despite this, the
matter did not get this kind of attention from
either the first applicant or its attorneys. A period of a further
three months
lapsed before the invalid application in terms of Rule 7
was delivered. In this period there was not much activity. The
activities
included two consultations with counsel, the last of which
occurred in the beginning of March 2018. The explanation for this
period
is woefully inadequate.
[16]
The explanation for delivering an application, namely that no dispute
of fact was envisaged,
is bad in law and probably also unrealistic in
any retrenchment dispute. Anybody with any experience in conducting
employment disputes
would know that retrenchment disputes require
oral evidence and that Rule 6 applies.
[17]
In order to complete the picture, the explanation for the period from
the time that the
invalid application was delivered until the
delivery of the statement of claim is acceptable, save for the fact
that it was triggered
by the inexplicable step of proceeding in terms
of Rule 7.
[18]
In summary thus, the explanation for a significant period of the
delay is poor.
Prospects
of success
[19]
The applicants do not deal with the prospects of success in the
founding affidavit, save
for a bald statement that “
[T]he
Applicants stands (sic) good prospects of success procedurally and
substantively
.” This is a non-explanation of the prospects
of success.
[20]
Mr Moretlwe
argued that the statement of claim should be incorporated in the
affidavits in the condonation application by virtue
of the fact that
the respondent had in its answering affidavit requested that its
special pleas should be incorporated as if specifically
traversed.
For this submission he relied on
Nature's
Choice Products (Pty) Ltd v Food and Allied Workers Union and
others
[5]
.
However, in that matter the appellant (the respondent in the court
below) had expressly incorporated its response in its affidavit
in
support of its application for condonation. It is a long stretch from
this state of affairs to suggesting that an incorporation
of a
limited portion of a response in an answering affidavit could extend
to include the incorporation of a statement of claim.
[21]
The Court was concerned about the fact that it could not have regard
to the contents of
the affidavit erroneously filed by the applicants
and the statement of case due to the fact that there was no specific
reference
to either of these documents in the founding affidavit of
the condonation application. Both parties advanced some submissions
on
the point but the Court requested them to make further
submissions. In doing so the Court was mindful of the submission by
Mr Van
der Westhuizen that it would be unfair to take facts, which
the respondent did not have the opportunity to respond to, into
account
in deciding the matter.
Further
submissions:
[22]
The applicants persisted with the submission already made, namely
that the fact that the
respondent incorporated its special pleas in
its answering affidavit, which dealt with specific averments
contained in the statement
of claim, meant that the statement of
claim was incorporated in the condonation application pleadings.
[23]
This proposition is interesting, but cannot be accepted. If the rule
applicable to applications
is to be applied, an applicant must set
out its case in its founding affidavit and the respondent must answer
that case.
[24]
Further, special pleas are destined for separate adjudication and the
mere fact that the
special pleas raised by a party might be bad, has
no consequence on the merits of such party’s case in the main
case. Unless
they are all that the respondent relies on, special
pleas could never serve to strengthen an applicant’s case.
[25]
Mr Moretlwe
referred to
Vivabet
(Pty) Ltd v Gauteng Gambling Board
[6]
in support of the contention that a party is permitted to rely on
other pleadings in a matter. In that case the pleadings in a
review
application were relied on in an interim application.
[26]
The matter
does not assist the applicants. The High Court confirms the basic
requirement that the crux of an applicant’s case
has to be set
out in the pleading in the interim application but does hold that a
party may refer to other pleadings for elaboration.
[7]
[27]
In this matter neither of the two requirements are met. If they had
been, the concern of
the respondent that it may be ambushed if regard
is had to pleadings not dealt with, would not have arisen
[28]
In view of the aforegoing, this Court is of the view that it is not
permitted to have regard
to any pleading that the applicant did not
(at least) incorporate by reference in their founding affidavit.
[29]
The applicants have thus not shown any prospects of success.
Other
criteria
[30]
Not much time was spent in argument on the other criteria. The issue
of prejudice was raised
in both the founding affidavit and the
applicants’ heads of argument. The initial inclination of the
court was to attach
great weight to this aspect. However, on
reflection, the individual applicants in this matter are in the same
position as any other
employee who is retrenched in South Africa. It
is unfortunately not likely that they would easily obtain employment
again. They
suffer obvious prejudice. If this stark reality should
entitle employees to condonation in cases where there is a long
delay, a
poor explanation for it and no prospects of success, another
very important principle in employment law, namely the speedy
resolution
of employment disputes, would be destroyed.
[31]
Sight must not be lost of the fact that the time spent by the
administrators of justice
on dealing with condonation applications,
including court time, could be spent on hearing matters where the
parties have complied
with the procedural requirements and
accordingly lead to the speedy resolution of their disputes.
[32]
Accordingly, the obvious prejudice that the individual applicants
would suffer if the condonation
application is declined does not
outweigh the other factors.
Conclusion
[33]
In the
light of the aforegoing, the application for condonation must fail.
Both parties submitted that costs should follow the result.
However,
the Court is not inclined to award costs. The Constitutional Court in
Zungu v
Premier of the Province of Kwa-Zulu Natal
[8]
quoted
with approval the reasoning of the Labour Appeal Court in
Member
of the Executive Council for Finance, KwaZulu-Natal v Dorkin N.O.
[9]
,
which
held that:
“
The rule of
practice that costs follow the result does not govern the making of
orders of costs in this court. The relevant
statutory provision
is to the effect that orders of costs in this court are to be made in
accordance with the requirements of the
law and fairness. And
the norm ought to be that costs orders are not made unless those
requirements are met. In making
decisions on costs orders this
court should seek to strike a fair balance between, on the one hand,
not unduly discouraging workers,
employers, unions and employers’
organisations from approaching the Labour Court and this court to
have their disputes dealt
with, and, on the other, allowing those
parties to bring to the Labour Court and this court frivolous cases
that should not be
brought to court.”
[34]
In the premises, I make the following order:
Order
1. The application
for condonation is dismissed.
2. The
referral by the applicants of an unfair dismissal dispute is
dismissed.
3.
There is no order as to costs.
_______________________
H. Nieuwoudt
Acting Judge of the
Labour Court of South Africa
Appearances:
For
the applicant
: Advocate T. Moretlwe
Instructed
by
:
Mdhluli Pearce and Mdzikwa Inc
For
the respondent :
Advocate GL van der Westhuizen
Instructed
by
:
Norton Rose Fulbright SA Inc
[1]
See:
Melane
v Santam Insurance Co Ltd
1962 (4) SA 531
(A) ;
Foster
v Stewart Scott Inc
.
(1997) 18 ILJ 367 (LAC) and
Grootboom
v National Prosecuting Authority & another
(2014)
18 ILJ 367 (LAC).
[2]
(2014) 18 ILJ 367 (LAC).
[3]
[2014] 6 BLLR 523 (LAC).
[4]
(1998) 19 ILJ 1598 (LC) at para 7.
[5]
(2014) 35 ILJ 1512 (LAC).
[6]
(28058/2017) [2017]
ZAGP
JHC
304.
[7]
Id fn 6 at para 22.
[8]
(2018) 39 ILJ 523 (CC) at para 24.
[9]
(2008) 29 ILJ 1707 (LAC) at para 19.